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Basic Law for Road Protestors Second edition by Peter Gray | |
 See also:rights on arrest CJA drugs & the law |
Second edition: January 1996
Contents
Introduction As a lawyer with an interest in protecting the environment, and anti-road protesting, I am frequently asked for legal advice by road protestors. In looking up the answers to various legal problems, I accumulated a large collection of photocopies of cases, Acts of Parliament, court rules and the like. When my collection of photocopies got so large that I couldn't carry it around any more, I decided it was time to condense it all together in a book, and this is it. Basic law for road protestors means exactly what it says. It is not a comprehensive statement of the law, and if in doubt about your legal rights you should consult a solicitor. However, it is an outline of the legal problems which a road protestor is most likely to come up against. The legal issues are set out in roughly the order in which you are likely to encounter them, from the public inquiry into a road proposal, right down to your likely sentence in court if you break the law. Copies of legal materials have been included as appendices, for reference. This book is only about the law, but there is a lot more to protesting about roads than knowing the law. Getting public opinion and the media on your side, communications and bender-building are all important, but you won't find anything about them in this book, because I can't cover everything. Many people today are opposed to roadbuilding, but people vary in the lengths to which they will go to try to stop a road scheme. Some people will make representations at a public inquiry, but will not break the law. Others will risk arrest, but will plead guilty and accept a caution. A small number of people will be prepared to go to prison. How far you go is largely a matter of your personal choice. Nothing in this book should be interpreted as an incitement to break the law, or to recommend one course of action rather than another. This book's purpose is to tell you what the law is, so that you can make your own informed choice. All actions and demonstrations should be non-violent. Nobody should get hurt - and that includes police officers and site employees as well as protestors. I do not accept the excuse that people are "provoked by the police" into violence. Everyone should have sufficient self-control not to be provoked: if you haven't, you shouldn't be on an action in the first place. Any references in this book to "he" mean "he or she". This is not sexist: I just want to save paper and ink. Information is power. I hope that after reading this book, people will feel more empowered than they did before. Peter Gray  Legal Sources and Philosophy Most if not all law in this country comes from three sources. First and most important are Acts of Parliament, or statutes. These are laws which have been debated and passed in the House of Commons and the House of Lords and given the Royal Assent by the Queen. An example is the Criminal Justice and Public Order Act 1994 (CJA). Second are Statutory Instruments (SIs). These are documents which are drafted by civil servants, approved by a Secretary of State or the Lord Chancellor and "laid before Parliament" for approval. As long as nobody objects (and usually nobody does) they become law, and then have the same force as an Act of Parliament. An example is SI number 1994/3263 which lays down the rules for public inquiries into road proposals. Third, and least important today, is common law. This is law which has been handed down from ancient times. Until about 100 years ago, most of English law was common law, but Acts of Parliament have now replaced most of the common law. Examples of remaining common law matters are trespass, assault and breach of the peace. European Community (EC) law is having an increasing effect on UK law, but it does not have a direct effect: it must be brought into UK law by an Act of Parliament. I shall deal with EC law in a separate chapter later. Our laws, even controversial and unpopular ones such as the Poll Tax law and the CJA, are an expression of the will of the people. The electorate elect their MPs on the basis of their manifesto commitments, and the MPs then pass Acts of Parliament and SIs to enable them to carry out their political programmes. Similarly, a road scheme which has passed a public inquiry is an expression of the will of the people. The inquiry is held according to rules passed by democratically elected MPs, the public are allowed to make representations at the inquiry, the inspector's recommendation is accepted by a democratically elected Secretary of State for Transport, and the road scheme is paid for by democratically raised taxes as part of a roads programme which the electorate voted for. Generally speaking, people should obey the law, because if they did not, we would have chaos and society would not function. On the face of it, therefore, it does not seem democratic or justifiable to take unlawful action to oppose a road scheme. And yet there are arguments on the other side. If society has been misled as to the true costs and benefits of a road scheme - for example, if people have been told that a road will prevent congestion, create jobs and benefit the environment, when it will do none of those things - then the decision to build the road is flawed. Also, if an individual road, or the roads programme in general, will cause permanent damage to the environment, one should take into account the needs and wishes of future generations, who do not have a vote in our electoral system. If we decide, collectively, to destroy areas of outstanding natural beauty, make species extinct, raise the temperature of the planet, destroy the ozone layer or use up the oil reserves, then even if we make those decisions lawfully and democratically, we may still not be morally justified in taking those actions. Many of our fundamental civil rights have come about, at least in part, because people were prepared to defy the laws of their time. For example, within living memory suffragettes broke the law in order to highlight the injustice of denying women the vote. There are no easy answers to these problems, and people must make up their own minds about what is morally justifiable, what is not, and when (if ever) it is right to break the law. But people should at least be aware of the arguments on both sides and be prepared to justify whatever course of action they take. Public Inquiries Most major road schemes start with a public inquiry. The purpose of an inquiry is to give the proposers, supporters and objectors to the scheme the opportunity to air their points of view. All points of view are considered by the inspector of the inquiry, who will write a report and make recommendations to the Secretary of State for Transport, who may or may not accept those recommendations. In practice, in 95% of cases the inspector recommends that the road should be built, and the Secretary of State agrees. Despite its name, a public inquiry is not very user-friendly to the public. The atmosphere is intimidating to people who are shy about speaking in public. There are large numbers of lengthy documents put before the inquiry, which most people do not have time to read, and might not understand even if they did. The lawyers and experts for the Highways Agency or County Council proposing the scheme are better trained and appear to be more knowledgeable than the average member of the public. The inquiry usually sits during the daytime, which means that people who have jobs will find it difficult to attend. And the inquiry can go on for months, which means that only those who are able to attend for the whole of the inquiry are able to build up a complete picture of the evidence which has been given. In practice, the only people who attend for the whole of the inquiry are the proposers of the road scheme and the inspector. Despite these drawbacks, it is worth attending the inquiry and making representations, because it is an opportunity to make your views known. The Department of Transport (DoT) publishes a blue booklet entitled "Public inquiries into road proposals - what you need to know." It is available free from the Highways Agency. It is worth reading this, but please bear in mind that it is what the DoT wants you to know about public inquiries, which is not necessarily the same thing as what you need to know about them. For reference, you will need a copy of the official rules of the inquiry. The most likely set of rules for a road inquiry is the Highways (Inquiries Procedure) Rules 1994 (SI 1994 No. 3263). This is available from libraries and HMSO. In certain circumstances, other sets of rules may apply. These are:
If you own land which is directly affected by the proposed road, you are a "statutory objector" and you have a right to be notified of the inquiry and to make representations at it. Any other person may only make representations at the discretion of the inspector: however, as long as you have something relevant to say, the inspector will usually allow you to say it. There may be a pre-inquiry meeting, which is mainly to set a provisional timetable for the inquiry. You should attend, let the inspector know your dates of availability and how long you are likely to need to present your case, and ask for as many evening sessions as possible so that working people have the chance to make representations outside working hours. It will also boost your confidence if your own supporters can attend on the day you present your case. You should have a reasonable opportunity to inspect and take copies of the documents to be put before the inquiry. A photocopier should be made available. There will probably be dozens of documents, including draft orders, witness proofs of evidence, statements of reasons, environmental statements, and supplementary statements prepared during the inquiry. You may (at the inspector's discretion) call witnesses to give evidence on your behalf, or cross-examine the other side's witnesses. You may also (at the inspector's discretion) put in a written statement instead of making a speech at the inquiry. The inspector will almost certainly allow you to do these things, but will expect you to provide the inquiry with a written proof of evidence from yourself and/or your witnesses. The rules of the inquiry say that representatives of government departments shall not be required "to answer any question which in the opinion of the inspector is directed to the merits of government policy." This is usually interpreted to mean "no person shall make any statements which are directed to the merits of government policy." However, the interpretation of this rule is a grey area. A statement to the effect that we should divert money from roadbuilding to public transport is clearly directed towards government policy, and would be disallowed. A question asking for clarification of what Government policy is, should be allowed, because it is not questioning the merits. Challenges to the accuracy or methodology of traffic forecast figures have sometimes been regarded as directed towards Government policy, on the ground that it is Government policy to use certain forecasting methods, but in my view this is an incorrect interpretation of the rule, and such questions should be allowed. If in doubt, ask the question, and be prepared to justify to the inspector why it does not breach the rules and should be allowed. There must be sensible limits as to what is considered to be government policy and what is not. For example, if one takes the view that it is government policy to build the road, then the whole inquiry is directed towards government policy and should be disallowed. The order of speakers at the inquiry is at the inspector's discretion, but is likely to be as follows. The promoters (Highways Agency or County Council) will present their case first. Their lawyer will make an opening speech, after which they will call expert witnesses, who are likely to give evidence on:
When all the evidence has been heard, each statutory objector will be invited to make a closing speech, summing up the evidence favourable to his position. The promoting authority goes last. If you want to propose an alternative route, you should think it out carefully and give rough details of your proposed route to the DoT at least 14 days before the inquiry, otherwise it will not be considered. You should also be prepared to back up your proposal with evidence at the inquiry, and be cross-examined on it. However, think carefully before proposing an alternative route, because it means that you are conceding the need for the road. Some practical points: stand up when speaking (unless the inspector invites you to sit down) and address the inspector as "Sir". Don't speak out of turn, or interrupt other people when they are speaking, because the inspector may ask you to leave. Conversely, of course, don't allow anyone other than the inspector to interrupt you. The inspector may stop you if he feels that you are being irrelevant, discussing Government policy or saying something which someone else has already said earlier in the inquiry. Try to stay cool, calm and polite (which may be difficult), but be prepared to be forthright if necessary if the inspector or DoT seem to be pushing you around. It is worth trying to cross-examine the other side's expert witnesses, but it is difficult to do this effectively. You will need to know both their case and your own inside-out, and preferably have had some practice in cross-examination technique at a workshop beforehand. Experts rarely say things which are obviously incorrect - they would be too easily found out - but they can manipulate a case in other ways. They can omit information which is inconvenient, or pass off opinion as fact, or use jargon to cover up muddled thinking, or make estimates without indicating what the margin of error is. Remember that however "expert" the expert appears to be, if he is supporting the road then he has probably come to the wrong conclusion, so there must be flaws in his reasoning somewhere. Good cross-examination technique involves asking "closed" or "leading" questions rather than "open" questions. An example of an "open" question is "Is this an accurate estimate of traffic flow?" to which the expert will naturally answer "yes", which won't get you very far. It is better to put him on the spot by asking a "leading" question, such as "Taking induced traffic into account, traffic flows could be 50% higher than those you have predicted, couldn't they?" to which the expert will have to come up with a sensible answer or risk sounding evasive. In a good cross-examination you should "put your own case" to the other side, rather than just ask them questions. If you are calling a witness to give evidence on your behalf, the opposite rule applies, and you must not "lead" them, but ask them open-ended questions and allow them to give their evidence in their own words. When the inquiry is over, it will probably take several months for the inspector to write his report and for the Secretary of State for Transport to consider it. The decision will then be notified to the promoting authority, the statutory objectors, and you if you specifically ask at the inquiry to be notified. If new evidence arises between the close of the inquiry and the Secretary of State's decision, you should notify the Secretary of State by writing him a letter or sending him a post-inquiry proof of evidence. If the new evidence is sufficiently compelling, it may cause him to come to a different decision to the inspector, or ask for the inquiry to be reopened. You should make it clear to him what you want him to do. The Secretary of State's decision is normally final, but if there has been any material irregularity in the conduct of the inquiry it may be possible to challenge it in the High Court by way of judicial review. This is very difficult and expensive and should not be attempted unless you are sure of your grounds. European Community Law Since joining the Common Market in 1972, UK law has been increasingly influenced by European Community (EC) law. The main purpose of EC law is to create an economic "level playing field" between member states so that they can compete fairly with each other. This has implications for the environment. For example, if one country uses a manufacturing process which is cheap and environmentally damaging, and another country uses a process which is expensive and clean, then the first country would have an unfair economic advantage over the second, at the expense of the environment. EC law aims to prevent this, but how successful it is in doing this is open to debate. An enormous amount of EC law flows out of Brussels each year. When collected together, a year's output is similar in size to the Encyclopaedia Britannica. There are four particularly important pieces of EC law as far as road protestors are concerned: the Birds Directive, Environmental Impact Assessment Directive, Access to Environmental Information Directive and Habitats Directive. These are all EC Council Directives, which do not have direct or immediate effect in UK law, but must be given effect by the UK Parliament passing a piece of legislation: either an Act of Parliament or a Statutory Instrument. An EC Directive usually specifies a time limit within which this must be done. The UK government has been persistently slow and reluctant to implement EC environmental law. It is therefore possible that the UK legislation which purports to give effect to the EC law does not, in fact, do so in its entirety. If there is a conflict between EC and UK law, environmental campaigners should rely on the wording of the original EC Directives. I have therefore reproduced these as appendices to this book, but not the corresponding UK legislation. If the letter or the spirit of any of the directives appears to have been breached, environmental campaigners should protest immediately to the Highways Agency or Council promoting the scheme, the inspector of the inquiry, and the European Commission. Birds Directive The full title of this Directive is "Council Directive of 2nd April 1979 on the conservation of wild birds (79/409/EEC)." It was notified to member states on 6th April 1979, and was published in the Official Journal of the European Communities on 25th April 1979, page L103/1. The time limit for giving effect to it was two years from the date of notification. It was brought into UK law by the Wildlife and Countryside Act 1981. The provisions of this Act relating to birds came into force in September 1982, over a year after the deadline set by the EC Council. This Directive was made in response to concern about the declining numbers of many wild bird species throughout the EC. It sets out measures which should be taken to protect all wild birds, and in particular certain named species which are considered to be particularly vulnerable. Measures include a prohibition on killing birds, selling birds, destroying or removing nests and eggs, disturbing birds, particularly in the breeding season, and conserving their habitats. The main parts of the Directive which concern road protestors are those relating to habitat conservation. The original Birds Directive was amended in 1991 by the replacement of Annex 1 (the list of birds needing special conservation measures) and again in 1995, by adding another seven species. The original Annex 1 listed 74 species: the new Annex 1 (as amended) lists 182 species. All of the species which were in need of special conservation measures in 1979 are still in need of special conservation measures today. This suggests that environmental damage is not improving, and is probably worsening. Environmental Impact Assessment Directive The full title of this Directive is "Council Directive 85/337 of June 27th 1985, on the Assessment of the Effects of Certain Public and Private Projects on the Environment." It was notified to members states on 3rd July 1985, and published in the Official Journal of the European Communities on 5th July 1995, page L 175/40. The time limit for giving effect to it was three years from the date of publication. It was brought into UK law, as far as roads are concerned, by the Highways (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1241). This came into force on 21st July 1988, over two weeks after the deadline set by the EC Council. This is arguably the most important of the three Directives. It requires member states to conduct and publish an environmental impact assessment (EIA) on projects which are likely to have significant effects on the environment. The EIA must identify, describe and assess the direct and indirect effects of a project on the following factors:
Environmental campaigners should ensure that any EIA meets the requirements of the Directive. If the EIA appears to be inadequate in any respect, this should be brought to the attention of the Highways Agency or Council promoting the road, the inspector of the inquiry and the European Commission. An EIA would probably not be judged inadequate solely on account of minor errors or omissions - no assessment is ever perfect - but it would be inadequate if there was a major error or omission which was likely to materially affect the outcome of the inquiry. Possible remedies for an inadequate EIA include:
At the end of the day, the protection afforded to the environment by an EIA is relatively limited. A scheme may be proposed which is very environmentally damaging, but provided its damaging effects have been properly set out in the EIA, and properly considered at the inquiry, it can still be implemented. Access to Environmental Information Directive The full title of this Directive is "Council Directive of 7th June 1990 on the freedom of access to information on the environment (90/313/EEC)." It was published in the Official Journal of the European Communities on 23rd June 1990, page L 158/56. The time limit for giving effect it was by 31st December 1992. I have been unable to find any single piece of UK legislation which brought it into effect: it seems to have come into effect piecemeal at various times under various provisions. However, it should be safe to assume that it is now all in force. The Directive gives wide powers to individuals to obtain information on all aspects of the environment from public authorities at national, regional or local level. The individual does not have justify why he wants the information. Certain exceptions are provided for: for example, information does not have to be disclosed if the disclosure might harm the environment, such as disclosing the whereabouts of badger setts. But a refusal to disclose information must be justified by the authority concerned. A reasonable charge may be made for supplying the information. Arguments can be won or lost on facts, so the more facts you have about the environment, the better. This Directive makes it easier to find out the facts. Habitats Directive The full title of this Directive is "Council Directive 92/43/EEC of 21st May 1992 on the conservation of natural habitats and of wild fauna and flora." It was published in the Official Journal of the European Communities on 22nd July 1992, page L 206/7. The time limit for giving effect to it was two years from its date of notification. It was brought into UK law by the Conservation (Natural Habitats etc.) Regulations 1994, which came into force on 30th October 1994. Assuming that the date of notification was no later than the date of publication, it came into force over three months after the deadline set by the EC Council. This Directive is the longest and most complicated of the three, and for those reasons it is not practicable for me to reproduce it in full. The Directive consists of 43 pages of highly technical descriptions of threatened Community species and habitats which should be conserved. The purpose of the Directive is to maintain biodiversity, promote sustainable development and prevent further deterioration of species and habitats. It sets up special conservation areas in a coherent European ecological network called Natura 2000, and a system for continuing surveillance. This is clearly a very important Directive, and should be referred to at any public inquiry into a road scheme where endangered species or habitats are threatened. However, the technical nature of the Directive means that you will probably need an environmental or biological expert to interpret it and to give evidence about it on your behalf. Perhaps someone from a local university may be willing to help. Hopefully, if your expert is sufficiently familiar with the environmental issues, he or she should already have a copy of the Directive. Failing that, a copy can be obtained from good law libraries with an EC law section, or as a last resort, I can provide you with a copy. Company Law Many of the organisations which build or promote roads, such as the British Road Federation (BRF), Tarmac and Wimpey, are limited companies. It is useful for road protestors to know a little about company law in order to understand the strengths and weaknesses of limited companies, and in particular how to obtain information about them. In order to be a limited company, a company must be registered at Companies House and must comply with company law, of which there is a great deal, contained mainly in the Companies Act 1985 (CA). A company consists largely of three groups of people: the directors, who are the "brains" behind the company, make decisions and direct its operations; the employees, who are the "hands" of the company and carry out the orders of the directors; and the members, or shareholders, who put money into the company and receive shares, dividends or other benefits in return. There is some overlap between the three groups: for example, directors and employees can also be shareholders. Also, a company can have members but no shareholders, profits or dividends. The BRF is one such company: membership is obtained by paying £500 or more per year, and the benefits of membership are not financial but information and political lobbying. A company is set up largely to protect the directors and members from financial losses. If the company fails, it can be wound up, and usually the personal assets of the directors and members are safe from creditors. This is in contrast to a partnership, where partners' assets are at risk if anything goes wrong. However, the downside of this financial security is that a limited company must comply with strict rules regarding its operation and disclosure of information to its members, the general public and the Registrar of Companies. This is so that everyone can ensure that there is nothing underhand going on in the company's affairs. Failure to comply with any aspect of Company law is punishable by a criminal prosecution of the company secretary. Company law is particularly useful for road protestors in obtaining information, and I have divided this into two categories: information available to any member of the public, and information available to members/shareholders. Information available to the publicA great deal of information can be obtained by doing a company search via Companies House. For a payment of £5.50 you are sent, usually by return of post, a set of microfiches containing:
When requesting a company search, try to make sure you get the name of the company exactly right. If your company is part of a large conglomerate, you may find that Bloggs Limited, Bloggs (Holdings) Limited, Bloggs (Construction) Limited, Bloggs (UK) Limited, Bloggs (Regional) Limited and Bloggs (National) Limited are all separate companies within the group. If in doubt, pick the most likely one, and even if it is the wrong one, the search will probably point you in the right direction. Companies involved in roadbuilding or construction work often have "construction" in the title. There is unlikely to be a list of company members/shareholders in the Companies House microfiches, because the list may be very long and may change from day to day. The Register of Members is normally kept at the company's registered office. Any company member can inspect it without charge, and any member of the public can inspect it on payment of £3 to the Registrar of Companies (Section 356 CA). It is worth asking to inspect the Register of Members of your favourite company if only to throw them into confusion, because most companies will never have heard of section 356 of the CA before. I tried this successfully with the BRF. I sent them an initial letter which they ignored. I then sent a second letter to the company secretary, threatening him with a private prosecution if he failed to allow me to go to his office and inspect the register. I received a gratifyingly swift response, and made an appointment to inspect the register. When I got there, I discovered that they had not previously had a proper Register of Members and that they had made one up, consisting of about 300 pages, specially for me to inspect. They didn't even charge me the £3 statutory fee. Such is the power of the law. Information available to members/shareholders If the company is publicly quoted on the stockmarket, you can become a member/shareholder by buying a single share. Some companies will sell you shares direct: try ringing their registered office. If not, you will need a friendly bank or stockbroker to help you with this. If the company is a private one, such as the BRF, you would have to apply for membership and probably pay a large fee. Membership of companies like the BRF is strictly controlled, and you might have to give the impression that you are a road haulage company or similar. Having become a member, you then have a great many rights in connection with the company. I can't list them all here - if you want to know what they are you should read the Companies Act 1985 - but the more important ones are:
Demonstrations, Marches and Assemblies First, think very carefully about whether or not it would be a good idea to hold a demonstration. Twenty people sitting on a digger looks spectacular and is a great photo-opportunity for the media. Twenty people marching down the street does not look at all spectacular, and if you're not careful it can look a bit silly. Therefore, it may not be a good idea to hold a demonstration unless you are confident about attracting a large number of people. Assuming that you have decided to hold a demonstration, you should hold it within the terms of sections 11 to 14 of the Public Order Act 1986 (POA). Tthe main points to note are that the organisers must give 6 clear days notice to the police, in writing, stating the date, time and proposed route of the procession and the name and address of the person proposing to organise it. You do not need permission from the police to hold a demonstration. However, the police may impose conditions if they reasonably believe that the procession may result in serious public disorder, serious damage to property, serious disruption to the life of the community, or intimidation. "Serious disruption to the life of the community" may include traffic congestion or blocking shopping streets. The conditions imposed by the police must be reasonable: if they are not, they can be challenged in court by judicial review. In extreme cases the police may ban a procession, but they cannot do this on their own initiative: they must first obtain an order from the local council. There is no requirement to give advance notice of an assembly or meeting, but if you do give advance notice, or the police suspect that an assembly will take place in connection with the procession, they may impose conditions on the assembly, such as restricting the place, duration and number of participants. They can also impose conditions on a procession or assembly on the spot. For legal purposes a "public assembly" means an assembly of 20 or more persons in a public place which is wholly or partly open to the air: POA section 16. If you deliberately fail to comply with any directions given by the police you are almost certainly committing an offence. Sections 70 and 71 of the CJA deal with "trespassory assemblies." These sections are meant to be grafted on to section 14 of the POA. A trespassory assembly is what it sounds like: an assembly of trespassing persons on private or semi-private land, as opposed to an assembly in a public place. This legislation is aimed mainly at preventing free festivals such as the one at Stonehenge. Under certain circumstances, a chief police officer can apply to the local council for an order prohibiting a specified assembly. Once an order is granted, anyone who organises, takes part in or goes in the general direction of the assembly may be arrested. Trespass To trespass, in the usual sense of the word, means to enter another person's land unlawfully - in other words, without their permission. The native American Indians had no concept of ownership of land. To them, the people belonged to the land, not the land to the people. They did not therefore have any concept of "trespass." However, this is unfortunately not the case with UK law, which takes the view that all land belongs to somebody. Usually, the owner of land is the person to whom the land is registered at the Land Registry. If the land is not registered, it belongs to whoever can prove title to the land, and if nobody can prove title to the land, it belongs to the Crown. Land may also be occupied by tenants or leaseholders who hold a tenancy or lease from the owner. Therefore, if you go on to land without permission, you are trespassing. You may also be trespassing if you have permission to go on land for one purpose, but you use it for another purpose: for example, if you have a right to cross a piece of land, that does not necessarily mean you have right to camp on it. Unauthorised camping, tree-dwelling, squatting and obstructing work on site are all forms of trespass. Before the Criminal Justice and Public Order Act 1994 (CJA) came into force, these were mainly civil matters between the trespasser and the landowner, which had to be dealt with in the civil courts. However, since the CJA came into force on 3rd November 1994, many more of them have become criminal offences. It has always been the case, even before the CJA, that an owner or occupier of land could remove trespassers from his land using reasonable force without the help of the police or a court order. That is still the case today. However, landowners (including the DoT) will nearly always involve the police, or go to court for an order, to remove trespassers, because it is easier and safer for the landowner. If a landowner removes people using excessive force, or removes people who he thinks are trespassers but who subsequently turn out to have a right to be there, he risks ending up in court himself. Camping Unauthorised camping, including tree-dwelling, is now prohibited under sections 61 and 62 of the CJA. A police officer can give unauthorised campers a direction to leave the land and to take any vehicles or property with them. If they fail to leave the land as soon as reasonably practicable, or if they return to the land within three months, they can be convicted. "As soon as reasonably practicable" may mean immediately, if you are on foot or in a vehicle, or within two hours, if you have to take down a tent. A number of conditions must be satisfied, including damage to the land (which can be as minor as trampling on grass or lighting a fire), and there must be two or more persons trespassing. Sections 77 to 80 of the CJA deal mainly with New Age Travellers and their vehicles, which is a form of unauthorised camping. However, this has limited relevance to road protesting, so I have not reproduced these sections in the Appendix. Raves These are prohibited under sections 63 to 67 of the CJA. A rave is defined as "a gathering on land in the open air of 100 or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermissions)." "Music" includes sounds wholly or predominantly characterised by the emission of a succession of repetitive beats. Even before a rave starts, under certain conditions people who are preparing, waiting for or going to a rave may be directed to leave the land or not proceed to the land, as the case may be. Sound equipment may be seized, forfeited and destroyed. Squatting Squatting is basically trespassing in a building with the intention of living there. Squatters have no more rights than any other trespassers: they can be removed by the landowner and his agents without a court order, provided no more than reasonable force is used. The police can arrest and remove squatters if they are occupying someone's home and that person wants to come and live there. The owner of the property is then a "displaced residential occupier" or a "protected intending occupier" and has special protection under sections 72 to 76 of the CJA. However, it is unlikely that these provisions will apply in the context of a road protest, as most squatted properties will be empty, compulsorily purchased and/or due for demolition. Quite apart from that, it is not very nice to squat in someone's home. I have not therefore reproduced these sections of the CJA in the Appendix. If a squatter causes damage to property, either to break in or after he has entered the property, this is not squatting: it is burglary and/or criminal damage which are both serious offences. A possible exception to this is a property which is due to be demolished, because it is unlikely that any prosecution for criminal damage would be brought in those circumstances. However, you should still not remove anything from the property, such as lead or slates, as this would be theft from the landowner or the demolition contractor. The main protection for squatters is section 6 of the Criminal Law Act 1977 (CLA). This prohibits any person from using or threatening unlawful violence for the purpose of securing entry into any premises. It is common for squatters to put up notices reminding landowners about squatters' rights under section 6 of the CLA. These notices often say that entry into the property without the squatters' permission is a criminal offence, that a court order is needed to evict them, and all sorts of other things. Most of these statements are bluffs, which may scare off digger drivers or security guards, who don't know the law, but will not deter police or bailiffs, who do. The main right you can rely on is not to have unlawful violence used or threatened towards you or your property. "Unlawful violence" means the same as "excessive force" which essentially means more force than is reasonably necessary in the circumstances. If you are resisting eviction by locking-on or barricading yourself in, a certain amount of force will be necessary to remove you, but it should not be unnecessary force or force which causes you to be injured. Eviction For squatters, eviction is like death and taxes: it's certain, the only questions being when and how. There are only two circumstances in which squatters can successfully resist eviction: when they have squatted the land unchallenged for 12 years, and become owners of the land; or when the landowner changes his mind and voluntarily allows them to stay. In the context of a road protest, neither of these is very likely, and in any event, both of them can be overridden by a compulsory purchase order. As I have already said, trespassers, including squatters, can be evicted from land or property at any time without a court order by the landowner and/or his agents using reasonable force. Squatting as such is not normally a criminal offence, and at this stage the police should not be involved. However, the landowner may want the police and/or court officers to evict squatters on his behalf. He can do this in two ways. If the property has been compulsorily purchased (which is often the case for road schemes), the landowner can issue a warrant to the Sheriff of the High Court requiring him to deliver possession of the land or property. Sheriff's officers are officers of the High Court, in the same way that bailiffs are officers of the County Court. As long as the landowner can prove that the property has been compulsorily purchased, and that some person or persons on the land is/are hindering him from taking possession of it, he does not have to notify the occupiers of the land about the warrant or have a Court hearing, even if they were bona fide tenants or owners of the land before the compulsory purchase. Upon taking possession of the land, the sheriff's officers can seize the goods of the persons on the land, and sell them in order to offset the costs of issuing the warrant. These provisions are contained in section 13 of the Compulsory Purchase Act 1965 (CPA). Under section 10(1) of the Criminal Law Act 1977 and section 8(2) of the Sheriffs Act 1887, any person who resists or intentionally obstructs an officer of the court who is enforcing a writ or order for possession commits an offence and may be arrested. Although section 13 of the CPA does not specifically say so, it is arguable that a sheriff's warrant can only be issued once without a court order. If trespassers return to the property after that, a court order may be needed to get them out a second time. This interpretation has never been tested in court, so I wouldn't rely on it too heavily. As an alternative to issuing a sheriff's warrant, a landowner can obtain a court order for possession of the land. This is a more complicated procedure, and requires the occupiers to be given at least two clear days' notice of the court hearing, and the right to attend the hearing and make representations. Notice may be served by handing the court documents to people, posting them through the letterbox or fixing them to doors, trees or stakes in the ground. Proceedings may be brought in the High Court for large and expensive pieces of land, or in the County Court for smaller and less valuable pieces of land. A High Court hearing may take place in the Royal Courts of Justice, The Strand, London, or in the local District Registry of the High Court, which is basically the County Court wearing a different hat. In the High Court, proceedings are governed by Order 113 of the Rules of the Supreme Court (the "White Book"). The County Court equivalent is Order 24 of the County Court Rules (the "Green Book"). These rules are reproduced at Appendices 11 and 12, respectively. Normally proceedings against squatters will be commenced against "a person or persons unknown." If you are affected by the proceedings, you have a right to make representations in court, but you will first be required to give your name and be formally joined in the action. This means that when you lose the case (as you will eventually) an order for costs may be made against you. If you have no money, it is possible that a costs order may not be made, or if it is made, it may not be enforced, but it is worth bearing in mind. Despite these drawbacks, it is worth attending court and making your views known. If there have been technical irregularities in the proceedings, and the relevant rules of court have not been complied with, you may be able to get the proceeding set aside. However, the judge will need to be persuaded that it would be fair to do so, so you will have to think through your arguments in a logical way. There is little point, for example, in arguing in court that you were not given proper notice of the proceedings, when the very fact that you are present in court proves that you knew about them. One point which has been successfully raised on more than one occasion is the duty of the local authority to give proper consideration to rehousing the evicted people, particularly where children or gypsies are involved. You may also wish to challenge the title of the person or authority bringing the case to ownership of the land. Appearing in court may delay (although not prevent) eviction. If you don't have enough time to prepare or present your case properly, ask for an adjournment. It is also an opportunity to involve the local media and present your case to a wider audience. Once you have been joined as a defendant to the action, you have the right to inspect and/or be given copies of documents in the court file relating to your case. If you inspect the file regularly, this may give you advance warning of when the eviction is likely to be, and what tactics are likely to be employed. If the court officials refuse to allow you to inspect the file, you should point out to them Order 63 Rule 4 in the High Court, and Order 50 Rule 10 in the County Court. If you really get the bit between your teeth, you could appeal against a possession order. Protestors against the M65 motorway in Lancashire went to the Court of Appeal, but this is expensive and not for the faint-hearted. Highway Rights Once a road scheme has started, fences and traffic cones will appear on or around the highway, and access for pedestrians may become difficult. You may be ordered not to walk on the roadside verge, as this is technically part of the site, but it may be dangerous to walk in the road, especially if (as is likely) the road is narrow and congested. Unfortunately, there seems to be a mentality among roadbuilders that cars and other traffic are more important than people. If a roadside verge is part of the site, then security guards are entitled to order you off it, and remove you using reasonable force if necessary. However, you have as much right as any other road user to walk on that part of the road which is dedicated as highway (apart from motorways, where special rules apply). Therefore, if walking on the road forces the traffic to slow down or stop, then so be it: both parties have exercised their legal rights. If you are ordered by a police officer not to walk on the road, you should obey his instructions but ask him to make it clear what he is ordering you to do: is he ordering you to walk on the verge, or to turn back and not use the road at all? Make a careful note of what is said, and the circumstances, and if necessary seek legal advice. If you are ordered to walk on a congested road, and you are hit by a vehicle, you will probably have a cause of legal action against the driver of the vehicle, but not against the owners or employees on the site. Many road schemes are built out in the countryside, and it may be necessary to use a car to get there. If a police officer suspects that you are a road protestor, and that you are the driver of a car, he may ask you to produce your driving licence and other documents. The law says that you are only required to produce your driving documents to a police officer if asked to do so while driving, or if you are suspected of committing a road traffic offence or being involved in an accident: sections 164 and 165 of the Road Traffic Act 1988. "Driving" for legal purposes means all activities associated with driving, such as stopping to buy petrol, sitting in the car with the engine running, temporarily stopped at traffic lights or in a traffic jam, or securing the car before you leave it. If you have left and secured the car at the end of your journey, and the police officer's only purpose in asking for your driving documents is to find out who you are, you are entitled, politely but firmly, to refuse. It is an offence to wilfully obstruct free passage along a highway: section 137, Highways Act 1980. A person driving or propelling a vehicle of any kind (including a bicycle) must obey the directions of a police officer directing the traffic: section 35 Highways Act 1988 and section 163 Road Traffic Act 1988. These provisions would apply to direct-action "Reclaim the Streets" type actions such as holding unauthorised street parties, mass cycle rides, erecting tripods and so forth. Injunctions An injunction is a civil remedy by which a court orders a person to do or not to do certain things. If you disobey, this is contempt of court and is punishable by imprisonment. During the Twyford Down protest, the Department of Transport obtained injunctions against a large number of protestors to stop them entering the construction site. That was before the CJA came into force. Nowadays, injunctions are less likely to be used, because the police have more extensive powers under the CJA to arrest and remove people from private land. A temporary injunction can be obtained "ex parte" (without forewarning the defendant) but this will be strictly limited in time, usually 7 to 14 days. After that, the defendant must be given an opportunity to attend a court hearing and say why the injunction should not be made. After hearing all the evidence, if the court is satisfied that the injunction should be made for a longer period, it will make an injunction order and usually order the defendant to pay both sides' costs of the proceedings. An alternative way of dealing with an application for an injunction is for the defendant to give an undertaking. This is a promise to the court to do, or not to do, the thing which is requested or complained of. An undertaking has the same force as an injunction, namely that if you break it, you can be imprisoned for contempt of court. However, it has the advantage from the defendant's point of view that no evidence is presented, no finding of guilt is made and usually no costs are ordered. Aggravated Trespass This is a new offence created by sections 68 and 69 of the Criminal Justice and Public Order Act 1994 (CJA). The offence consists of intimidating, deterring, obstructing or disrupting persons attempting to carry out any lawful activity on land in the open air. This applies to roadbuilding. Note that for these sections to apply, both the roadbuilder and the protestor must be on land in the open air, not in a building. It would also be a defence to show that the activity you were trying to disrupt was not lawful, or that you honestly believed that it was not lawful. Surprisingly, "land in the open air" does not include roads, so you could in theory stand on the old road and attempt to deter or disrupt people working on the new road, for example by talking to them (but not by throwing things, as this is a form of trespass). If a police officer reasonably believes that you are committing, have committed or intend to commit aggravated trespass, he can direct you to leave the land. If you fail to leave as soon as practicable, you commit an offence and can be arrested, even if you haven't done anything. Breach of the Peace "There is a breach of the peace whenever harm is actually done or threatened to be done or is likely to be done to a person, or in his presence to his property, or a person is in fear of being so harmed through assault, an affray, a riot, unlawful assembly or other disturbance:" R v Howell (1981) 73 Criminal Appeal Reports 31 (Court of Appeal). This is an old and rather archaic common-law matter. It is poorly defined, but police have the power to arrest for it. They therefore very often arrest people for "breach of the peace" if they think that someone ought to be arrested, but can't think exactly what else to arrest them for. They can then be brought before a magistrates' court. The purpose of arrest and binding over for breach of the peace is in theory to prevent crime, rather than to punish a crime which has been committed. There is no penalty specified for breach of the peace, but a person may be bound over to keep the peace in a certain sum of money for a certain period of time. The person concerned must agree to the binding-over. The effect of it is that if he comes before the court again, that sum of money may be forfeited, but no additional penalty may be imposed. If the person does not agree to be bound over, or does not pay the money, he can be imprisoned: section 1 Justices of the Peace Act 1968. A binding-over is not a conviction, and a person agreeing to be bound over does not get a criminal record. He can be bound over even if he has been acquitted of other offences at the same hearing. The sum in which a person is bound over must be proportionate to his financial means. Arrest An arrest occurs when a police officer states that a person is arrested, when he uses force to restrain the person, or when he makes it clear that he will if necessary use force to restrain the person. However, for an arrest to be lawful, it is essential that it be made clear to the person the fact of and reason for the arrest, even if it is obvious from the circumstances: section 28 Police and Criminal Evidence Act 1984 (PACE). Facts and reasons must be given at the time of arrest or as soon as practicable thereafter. The arresting officer should normally have a reasonable suspicion that an offence has been, is being or is about to be committed. This is not as high a standard as proving it in court, so it is quite reasonable and lawful for an arrest to be made on suspicion, and for there then to be insufficient evidence to proceed further, and the person is then released. That in itself would not constitute an unlawful arrest. The fact of and grounds for the arrest may be given in colloquial language, for example "You're nicked for obstruction", provided the arrested person understands the fact of and reason for the arrest. It is not necessary to quote the exact wording and section number of the relevant Act of Parliament. A person is entitled to resist an unlawful arrest by using reasonable force, but I would not advise anyone to try this. In the heat of the moment, you may think an arrest is unlawful when in fact it is lawful, or you may use more than reasonable force, and in either case you are likely to get into a whole heap of trouble. It's better to submit to the arrest at the time, and sue afterwards if the circumstances warrant it. Similarly, do not try to prevent anyone else being arrested. You can be arrested:
An unlawful arrest constitutes false imprisonment for which you can sue for damages. It will probably also be a technical assault. Normally, if you have a good case for an unlawful arrest, the police will settle out of court. Security guards can perform citizens' arrests on basically the same principles as for police officers. There is a suggestion that they don't have to state the fact of or reason for the arrest if those facts are obvious, but this point is not entirely clear from section 28 PACE. A security guard or other private citizen performing a citizen's arrest must hand the arrested person over to the police as soon as practicable: anything else would be kidnapping. Co-operate or Not? This is nothing to do with law, but is a matter of personal decision and judgement. What I am about to say now may be contrary to the view taken by other road protestors, lawyers or environmental or civil rights organisations, but I think it is important that people should make an informed choice about what they want to do. After you have been arrested by the police and removed from the site of a protest, you may feel that most of what you want to achieve has been achieved. Work has been temporarily stopped on site. You have made your point and drawn attention to the environmental problem. The media (if present) have got their story, their photographs and a figure for the number of arrests. Your dispute is with the Department of Transport and their contractors, not with the police, who are (in theory) neutral. Therefore, is there any point in continuing to protest, or should you co-operate with the police? Many environmental and civil rights organisations advocate protesting until the bitter end, giving only the bare minimum of cooperation, saying nothing apart from giving your name and address, and pleading not guilty. However, there is a lot to be said for giving in gracefully at this point. Some of the police may sympathise with what you are trying to do, and in arresting you they are only doing their job. If you confess and are pleasant and cooperative, you are more likely to be offered a caution or released without charge. Even if you are taken to court, a guilty plea will mean a lighter sentence, less prolonged proceedings and no bail conditions. You may prefer to do more useful things with your money than pay a court fine. After weighing up the alternatives, the choice is up to you. Procedure at the Police Station After arrest, the arresting police officer is obliged to take the arrested person to a designated police station as soon as practicable. There, he may be detained for questioning. The supervision of the detention and its conditions are the responsibility of the custody sergeant, who must maintain a custody record. The arrested person has the right to inspect the custody record. The custody sergeant must also inform the arrested person that he has the right to have someone informed of his arrest, to consult privately with a solicitor free of charge, and to consult the appropriate codes of practice. He must give the arrested person a written notice of his rights, and administer the new caution, which came into use early in 1995 and which now states: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence. This partially takes away the old "right to silence." If you have a valid defence to whatever you have been arrested for, you should say what your defence is and make sure that the police officer writes it down, or write a statement yourself. Alternatively, you can still say nothing, in which case if the case comes to court the prosecution are obliged to prove the case against you "beyond reasonable doubt" by presenting evidence: see below. The law relating to detention in custody and questioning is complicated and I can do no more than outline it here. Most of the details are contained in PACE. You may be held without charge, for questioning if necessary, for up to 24 hours for minor offences, although usually the time period is much shorter. After that time you should be charged or released. If you are charged, you will probably be granted police bail. However, if you have offended before, or the police think you may offend again if released, you may be remanded in custody. If you are remanded in custody, you must be brought before a magistrates' court as soon as practicable, where the question of bail will again arise (see below). Formal Caution This should not be confused with the "caution" given before questioning. It is a way in which the police, at their discretion, can dispose of offences without bringing the defendant before the court. Preconditions for a caution are that the evidence must be sufficient for a prosecution, and the offender must admit guilt and agree to be cautioned. Upon being cautioned, the offender must sign a form admitting the offence and agreeing to the caution. Cautions are often used for juveniles, and adults who would probably receive a light sentence (conditional or absolute discharge) on conviction. Records of cautions are kept for three years. A caution is not a conviction. If a cautioned person is subsequently convicted of an offence, the caution may be cited at the sentencing stage, and may influence the magistrates to impose a slightly heavier sentence than they might otherwise have done. Bail Bail may be granted either by the police after arrest, or by the magistrates' court if the defendant is remanded in custody. It is a way of dealing with a defendant while criminal proceedings are ongoing, and ensuring that he attends court when he is supposed to. It therefore follows that the question of bail normally cannot arise after proceedings have finished, in other words after you have pleaded or been found guilty and sentenced. A person who is released on bail is under a duty to attend court at a time and date notified to him. In its simplest form this is "unconditional bail." However, conditions may be attached, and in the case of road protestors, a common condition is that you do not go within a certain distance of a road construction site, say half a mile. Other conditions may be reporting to a police station at regular intervals, living at a certain address or putting up a sum of money as a surety, which is forfeited if you breach bail. Breach of a bail condition is not an offence and you cannot be convicted for it. However, your bail may be withdrawn and you could be remanded in custody until your trial. Failure to surrender to bail (turn up at court for a court hearing) is an offence for which you can be punished separately. If you are refused bail, or you think your bail conditions are unreasonable - for example, if you live within an area from which you have been excluded - you can apply to the magistrates for bail to be granted, or bail conditions to be varied. If the magistrates do not agree, you can appeal to a Crown Court judge. Magistrates' Court: Guilty Plea Whenever a case comes to court, it will be prosecuted by the Crown Prosecution Service (CPS) and not the police, which used to be the case. However, if you plead not guilty the police will probably be called as witnesses. You should stand up whenever the magistrates come into or go out of the court. If a road protestor is in custody, it has been known for supporters in the public gallery to also stand up when the defendant is brought into the dock. This is an unconventional manoeuvre but as far as I know there's no law against it. You will first be asked to confirm your name and address, the charge(s) will be read to you by the clerk of the court, and you will be asked whether you plead guilty or not guilty. If you plead guilty, you will be asked to sit down. The prosecutor will then read a summary of the facts comprising the case against you. He will then hand up to the magistrates a sheet containing your previous cautions and convictions (if any). You should be given an opportunity to check that these are correct. The prosecutor will conclude by asking for costs, usually in the region of £40. You will then be asked to stand, and to say whatever you wish to say. There are usually three magistrates: address the middle one as "sir" or "madam" or all three of them as "your worships." Always stand up straight when speaking to the magistrates, take your hands out of your pockets, and try to avoid scratching your head or your bottom or picking your nose, no matter how powerful the urge. If you agree that you committed the offence, but you disagree with the exact facts alleged by the prosecution, you should state your version of the facts. The magistrates are obliged either to accept your version or to hear evidence of the prosecution version from witnesses, so normally they will accept your version. You should then state any facts in your favour which ought to influence the magistrates to give you a light sentence: for example, you pleaded guilty and were cooperative with the police, it is your first offence, you are on income support and don't have much money. However, if you go too far and say something which amounts to a defence to the charge, for example that it was an accident or you were acting in self-defence, the magistrates may order a not guilty plea to be entered and adjourn the case for trial. The magistrates won't be interested in hearing what you think about the Government's road-building programme, so don't bother. Tell it to the Press instead. The magistrates will then either have a brief discussion among themselves, or go out for a while. They will then come back (if they have gone out) and announce the sentence (see below). If the sentence is a fine, they will ask you if you can pay immediately, or if not, how much a week or a fortnight you can pay, so you should think about this in advance. They will then tell you that you can go. Magistrates' Court: Not Guilty Plea The proceedings will start as for a guilty plea (see above). If you plead not guilty when the charge is put to you, the case will be adjourned until the court has time to hear a trial, which will be some weeks or even months ahead. You may be asked how many witnesses you intend to call and how long you think it will take. Half a day is a normal length of time for a reasonably straightforward trial. There may be adjournments for other reasons: for example the prosecution may want more time to prepare their case, or you may want more time to prepare your defence or obtain legal aid and advice. Whenever a case is adjourned, the question of bail comes up. There is a presumption in favour of bail - in other words, bail should be granted unless there is a good reason not to - but there may be conditions attached: see above. You are likely to be granted bail on the same conditions as before, unless either you or the prosecution apply for something different. At trial, the prosecution have to prove their case "beyond reasonable doubt", and that means proving every element which makes up the offence. You don't have to prove your innocence. If there is a reasonable doubt about whether you committed any element of an offence, you are entitled to be acquitted. Before the trial starts, you will asked to confirm your name and address and the fact that you are still pleading not guilty, and the order of trial will then be:
All witnesses are first examined (questioned) by the side which called them, then cross-examined by the other side. The normal rule is that when you examine your own witnesses, you prompt them to tell their story in their own words, without asking leading questions, but when you cross-examine the other side's witnesses, you ask them leading questions which demand a "yes or no" answer, such as "I wasn't sitting on the digger when you arrested me, was I? The magistrates will retire to consider their verdict. They will then return to the court and announce their verdict. If you are acquitted, ask for your costs of conducting the case. This includes legal and travel expenses but not lost earnings. If you are convicted, the prosecution will ask for their costs, which will be higher than for a not guilty plea: usually around £100. You should have the opportunity to address the magistrates on costs, and say anything in mitigation which you want to say, for example your financial circumstances, before the magistrates pass sentence. If you lose a case, accept it with dignity and remember that you have a right of appeal to the Crown Court against both conviction and sentence. An appeal against a decision of the magistrates takes the form of a complete re-hearing of the case, with evidence, before a Crown Court judge and two lay magistrates. You must lodge your notice of appeal within 21 days of sentence. Sentence The maximum sentence which a magistrates' court can impose is a £5,000 fine or six months imprisonment, or both, for any one offence. There may be lower maximum sentences set for individual offences. However, for the normal activities associated with road protests, it is most unlikely that penalties of that severity will be imposed. The main factor determining sentence will be the facts of the individual case, not the theoretical maximum penalty. The most likely sentences for peaceful protest are conditional discharges or fines of up to £100. A conditional discharge means that no sentence is being imposed today, but if you commit another offence within a specified period (usually 12 months) you will be sentenced for both offences together. If you have been violent, committed criminal damage, assaulted or obstructed a police officer or offended repeatedly, the magistrates are likely to take a dim view of it and may impose a much heavier sentence than they would have done just for a one-off peaceful protest. You have been warned. Bringing a Private Prosecution You may wish to do this if, for example, you have been assaulted by a security guard using unreasonable force to remove you from a site, or a company secretary has denied you your rights under company law (see "company law" section). A private prosecution is similar to the magistrates' court procedure outlined above, except that the roles are reversed and you are now the prosecutor instead of the defendant. To start a private prosecution you must "lay an information" with the clerk at the nearest magistrates court to where the alleged offence took place. In the case of a company law prosecution, this should be the nearest magistrates' court to the company's registered office. An information is the formal accusation that a certain individual (the accused) has committed an offence. There is no specific form for this as far as I know, but it must contain the following information:
Statements of offences related to assault may take the following forms, in increasing order of seriousness:
If at the time of the alleged assault you were acting in an aggressive manner, the accused may say that he acted in self-defence, so this is another good reason why you should act non-violently at all times. On receipt of the information, provided it is in order, the clerk to the magistrates will then issue a summons to the accused, telling him that an allegation has been made and instructing him to attend court on a particular date to answer the allegation, with a copy to the informant. If you think you have been assaulted by a security guard, finding out his name and address may be difficult. Photographs and detective work may be necessary. His employers aren't obliged to tell you who he is. Once an information has been laid, however, getting information becomes easier, because the police or anyone else with relevant evidence can be compelled to produce it by means of a witness summons under the Criminal Procedure (Attendance of Witnesses) Act 1965. In court, you then follow the procedure outlined above for Magistrates' Courts, except that you go first because you are the prosecutor. Starting a Civil Action I will only outline the procedure for starting a civil action very briefly, because this book is meant to be a self-help manual, and this is the point where self-help stops and you will need professional advice. There are a number of civil proceedings which you may want to start: for example an application for an injunction to protect archaeological remains, an action for damages against the police, or a judicial review of a public inquiry. The law and procedure for all of these is complicated, you may or may not be eligible for legal aid, and the outcome is uncertain. You will need professional advice on all of these aspects. One thing which you should consider carefully before you start, or threaten to start, a civil action, is your chance of success. You will not get legal aid unless you have a "reasonable prospect of success", which the Legal Aid Board defines as 50% or more, and you should consider carefully whether you want to spend your own money on an action unless you have at least a 50-50 chance of succeeding. If you lose a civil action, and you are not legally aided, you will normally be ordered to pay the other side's costs, which will probably be considerably more than your own. In order to assess the prospects of success realistically, the strengths and weaknesses of the case for both sides need to be carefully weighed up in the light of the facts, the relevant statute and case law and the normal approach adopted by the courts. The best person to do this is an independent legal advisor. Litigants in person often find it difficult to assess their prospects of success, because they are not familiar with the law and they are often emotionally bound up with their own cases. If you decide to proceed with a civil action, the procedures are broadly similar whatever the type of action. You will issue proceedings in your local County Court or High Court by paying a fee and filing a statement of your case, usually called the Particulars or Statement of Claim. This document is then sent to the other side, who will respond by filing a Defence, setting out their side of the case. Relevant documents will be exchanged, so that neither party can spring a surprise on the other at court, and the case will be set down for hearing. At the hearing, both sides will call witnesses to give evidence. At the end of the hearing, the judge will make an order, giving his findings of fact and reasons, and (usually) order that the loser pays the winner's costs. Special rules apply to judicial review. This is a challenge in the High Court to a decision of an inferior court or tribunal, such as a public inquiry, on the ground that the decision or procedure was irrational, unfair or improperly carried out. Judicial review looks at the decision-making process only, not the merits of the case. If you are successful, the decision or outcome of the inquiry will be quashed. A person seeking judicial review must have "locus standi": in other words, he must have a sufficient interest in the matter, or be directly affected by it. There are two stages to judicial review. First you have to apply for leave to seek judicial review. At this stage, a judge will filter out obviously hopeless cases and may impose conditions: for example that you give security for the other side's costs in case you lose. If you get past this first stage, you will then go on to the main hearing at which both parties will be represented. Now What? Now you have to go back to the beginning and start again, because even if you defeat one road proposal, the pro-road lobbyists, backed by social, political and economic forces, will already be pushing for a new road somewhere else. Ultimately, getting a rational and sustainable transport system will require major changes in public thinking about long-term planning, economics and the environment. These changes will not come about overnight, although the scrapping of a large part of the roads programme in the November 1995 Budget suggests that changes may be on the way. Educating the public and making them aware of the issues, and of the effects of making certain choices, will in the longer term be far more important than the law, or the success or failure of any individual road proposal. But this book only deals with the law. To find out more about the practical side of road campaigning, I suggest you contact some of the organisations listed in the links section. Your investigations should include considering the arguments of both the pro-road and anti- road lobbying organisations, because you can only make rational choices when you have heard and thought about what both sides have to say. Both the Highways Agency and the British Road Federation offer a large amount of free literature, which is physically (if not intellectually) of a high quality, so even if you don't agree with what they say, you can still enjoy looking at the colour pictures. You need the support of the public. When you are involved in an anti-road campaign, your activities will attract attention from the local and maybe the national media. You therefore need to think very carefully about what effect your activities are likely to have on public perception of the campaign. Violence, damage and intimidatory behaviour will lose the support of the public and be self-defeating in the long term - so don't do them if you can possibly avoid it. Good luck. contact details and credits This publication is anti-copyright and is published and distributed without profit as a public service. Please copy and re-distribute as required. Further copies are available on the Internet, by e-mail, on floppy disk or on paper.
The law in this book is that applicable in England and Wales as at 1st January 1996. Scottish law may be different. I would like to thank all the people whose material I have used or who have helped in the preparation of this book, including Road Alert!, David Plumstead, Trevor Parsons, the Royal Society for the Protection of Birds, Gordon Selway, Jonathan Bray, Transport 2000 and Paul Mobbs. The contents of this book are entirely my own responsibility, and do not necessarily represent the views of the above-mentioned people and organisations, or of other barristers practising from my chambers, or of any organisation with which I may be affiliated. Peter Gray Barrister 284 Sturry Road Canterbury Kent CT1 1HQ 01227 764899 (daytime) E-mail: [email protected] urban75 are grateful for Peter Gray's permission to reproduce his excellent work. Paranoid legal disclaimer: the opinions above are those of the author and not necessarily endorsed by urban75. |
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